James Crawford: The EU May Ban Imports from the West Bank

European governments, including Britain’s, have received legal opinion from a leading international counsel who argues they would be fully within their rights to ban trade with Israeli settlements in the occupied West Bank.

The formal opinion from James Crawford, professor of international law at Cambridge University, is likely to inject fresh momentum into campaigns in the United Kingdom and elsewhere for a ban, at a time when some EU member states are examining ways of hardening their position on the imports of settlement produce.

Israeli settlements in the West Bank are considered illegal under international law, a position upheld by all EU member states.

In particular the opinion will be seen as challenging received wisdom in official circles that for a state such as Britain to ban imports of settlement produce, or prohibit banks from financing settlement activity, would contravene European or global trade law. Professor Crawford says in his 60-page opinion, shown to senior officials of EU member states in the past few months and seen by The Independent, that “there do not appear to be any EC laws which could be breached by a member state taking the decision to ban the import of settlement produce on public policy grounds.”

He argues that member states wishing to block the import of produce from settlements could “have recourse” to the EU’s Association Agreement with Israel, which stipulates that the agreement “shall be based on respect for human rights and democratic principles.” He argues that, by executing such a ban on trade with settlements, the EU would not be in breach of its World Trade Organisation obligations since, “as a matter of international law, the West Bank and Gaza cannot be considered to be Israel’s territory”.

Crawford’s conclusions will no doubt infuriate Israel, which recently described South Africa’s ban on imports from the West Bank labeled “Made in Israel” as having “characteristics of racism.” If Israel believes that requiring it to accurately label settlement products is racist — which, of course, it’s not — I hate to imagine what language it would use to describe a complete ban on settlement products, even those that are accurately labeled.

Crawford’s report can be downloaded here. I was particularly struck by its final paragraph, in which Crawford says the following:

Unfortunately, the present reality of the political situation in Palestine is such that it is unlikely that any adverse legal ramifications will result from States or private entities continuing to engage with the unlawful settlements. As noted by the [ICJ] in its Namibia judgment: “the qualification of a situation as illegal does not by itself put an end to it. It can only be the first, necessary step in an endeavor to bring the illegal situation to an end.” Regrettably, the political will does not seem to exist at present to enforce principles of international law in respect of the settlements.

Wise words. And strong ones — especially coming from a renowned international law scholar who is anything but a radical leftist.

Unless similar rules are applied to Russian-occupied Georgia, Indian-occupied Kashmir, Moroccan-occupied Western Sahara, Turkish-occupied Cyprus, etc., it will look like, if not racism, at least unprincipled.

Moreover, the Oslo framework quite clearly legitimated Israeli civilian control of parts of the West Bank (the parts where the Jews live and to which the boycott presumably applies) pending a final resolution. That is, the process whereby Israel has full civilian control over Area C was the result of a major diplomatic gesture that was celebrated by the whole world, and agreed to by the PA.

@Eugene: I don’t know about South Ossetia. I don’t think they do very much exporting. (80% unemployment, etc.) But for EU-Israel, art. 83 of the Association Agreement states:

‘This Agreement shall apply, on the one hand, to the territories in which the Treaties establishing the European Community and the European Coal And Steel Community are applied and under the conditions laid down in those Treaties and, on the other hand, to the territory of the State of Israel.’

So unless Israel annexed the West Bank while no one was looking, that settles the first prejudicial question posed in Brita.

(The second one was whether the customs authorities have to accept the exporting state’s certificate of origin without being permitted to verify same, and it seems quite right to me that they do not.)

Incidentally, the EU also has an association agreement with the PLO, which extends to the West Bank and the Gaza strip. (Cf. par. 20-29 of the Brita judgement.)

Martin, I would not suggest EU is obligated to allow these goods, only that their outrage is, um, selective.
Some follow up questions:
Would Israeli produced goods in WB be importable under the agreement with PA?

@Eugene: It’s not outrage, it’s just a Hamburg customs official trying to figure out what to do with a shipping container full of oranges. In Europe, that problem ends up in Luxembourg pretty quickly.

As for Israeli or Israeli Arab produced goods from the West Bank, they would theoretically be covered by the EU-PLO Agreement, but in practice I think it would be difficult to get the Palestinian authorities to issue the relevant proof of origin paperwork.

Response…
The issue not addressed here involves the customary international laws of war reflected in Articles 46, and 55 of the Annex to Hague Convention No. IV (1907) and in the last para. of Article 49 of the 1949 Geneva Civilian Convention, which prohibits the transfer by Israel of “parts of its own civilian population into the territory that it occupies.” Therefore, it is not actually a question whether an occupation is unlawful, but whether certain measures are unlawful with respect to control of private and public property and the transfer of Israelis into the West Bank.
Israel used to argue that Article 49 of GC did not apply because of technical language in common Article 2 (“territory of a High Contracting Party”), claiming that no one “owned” the West Bank. The ICRC and most of the world has not accepted such a claim and, of course, before the ’67 War, that territory was not part of Israel (is not now) and could not lawfully be annexed under customary international law. Moreover, the technical trigger in Article 2 of the GC is not a limitation of the application of customary international law.

The purchase of settlement agricultural produce, or the construction of infrastructure within the settlements, could amount to aiding and assisting the ongoing breach of Articles 43 and 55 of the 1907 Hague Regulations, and the general breach of the Palestinians’ rights to self-determination and sovereignty over their natural resources. This could engage the assisting State’s responsibility under Articles 16 and 41(2) of the ILC Articles on State Responsibility.

“A report by a committee formed by Prime Minister Benjamin Netanyahu to examine the legal aspects of West Bank land ownership rejects the claim that Israel’s presence in the territory is that of an occupying force and asserts that its settlements and settlement outposts there are legal.”

If one does not like the law, assert it does not apply. Then watch who acquiesces and who resists your view. Where have we seen that recently? Torture, Data, Geneva Conventions, and on and on.

Oh what we have lost with the torture and the War in Iraq in our ability to assert international law to anyone.

I find this bit particularly important:Property rights acquired by States, individuals or corporations in support of the settlements would not be opposable to an independent Palestine as a matter of general international law.
This recognizes that settlements and foreign investments carried out in the occupied territories would have no protection and could readily nationalized, if I understand correctly, without compensation. In the main body of his reasoning, Crawford states that this is the case ‘absent an agreement to this effect’ (para 110). This would considerably increase the risk, for foreign investors, of buying land, or other commercial assets in the occupied territories.

7.12.2012
at 10:50 am EST Matthias

@Matthias: Are you aware of the ECtHR (and CJEU) litigation about property in North-Cyprus? This continues to cause all sorts of trouble.

Martin – so there is such litigation? What about Western Sahara, are there moves afoot in Europe to boycott stuff from there? Apparently the legal position is similar:
This is from Wikipidedia
The European Union fishing agreements with Morocco include Western Sahara.
In a previously confidential legal opinion (published in February 2010, although it was forwarded in July 2009), the European Parliament’s Legal Service opined that fishing by European vessels under a current EU – Morocco fishing agreement covering the Western Sahara’s waters is in violation of international law

@Eugene: The Legal Service of the Parliament? How did they get involved? This sounds more like something for the Council or Commission LS.

As to substance, I don’t think boycott is the right word. The EU isn’t refusing to accept goods produced in the settlements, it is simply insisting that such goods do not count as “Israeli” for the purposes of the relevant Association Agreement.

For the Western Sahara, the EU position is, if I understand it correctly, that its resources may not be traded without the consent of the people of that region. (Sovereignty over natural resources, etc.) There are accusations that Morocco is falsely labelling tomatoes coming from the Western Sahara as being Moroccan, but so far there is no litigation on this point.

There are a couple of Green MEPs who are pushing the EU to be tougher on Morocco. I’d link to some parliamentary questions, but then I’ll set off the spam filter. Since you mentioned fisheries, you might be interested in this answer given by the Council to a question by Portuguese GUE MEP Joao Ferreira:

“On 14 February 2012, the Council adopted a decision authorising the Commission to open negotiations on behalf of the European Union for a new protocol to the Fisheries Partnership Agreement with the Kingdom of Morocco. That decision follows the decision of the European Parliament on 14 December 2011 not to give its consent to an extension of the previous protocol to the Fisheries Partnership Agreement.
The negotiating directives envisage provisions in the new protocol ensuring compliance with international law and appropriate reporting by the Moroccan authorities on the socioeconomic impact of implementation of the Protocol.”

@MartinHolterman: Yes I am aware of the issue before the European Courts. What struck me here, however, is the idea that foreign investors, in this case UK investors, buying land or commercial interests in the occupied territories could face expropriation without compensation under general international law, rather than under a (shared) HR instrument (as in Cyprus-Turkey, or Georgia-Russia configurations). I was under the impression that this issue was non-trivial, as I would have expected that some level of protection of said investment would be available under customary law (against either Israel, or a newly sovereign Palestine State).

7.13.2012
at 5:23 am EST Matthias

@Matthias: Under ye olde international law, the default position is pretty much that protection against state action is never available. Hence the Human Rights treaties and the (Bilateral) Investment Treaties.

February 9, 2018Is International Law International? Continuing the Conversation[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts' new book Is International Law International? If you missed any earlier posts here on OJ, all of them are linked at the end of this post. Please be sure to continue th...

February 9, 2018Is International Law....Law?
One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of interna...

February 8, 2018On Is International Law International? ‒ Where Next?[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]
First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, a...